The Gavel, in Time of War

August 7, 2002

The federal courts have raised needed questions about the way the Bush administration is trying to prevent another terrorist attack. From their legal standpoint, some judges are saying that certain detentions stray too far from American standards of justice, even in times of emergency.

The most recent such decision was handed down by US District Court Judge Gladys Kessler in Washington. She ruled in favor of a coalition of civil liberties groups that brought a Freedom of Information Act suit and ordered the Justice Department to release the names of those detained in the US by federal investigators probing the 9/11 attacks.

While the judge said secret arrests and detentions are "antithetical" to a free and open society, she also showed some awareness of the necessity of secrecy in times of war. For instance, she rejected the plaintiffs' request to also release place and time of arrests, acknowledging that information could give terrorists some insight into the government's investigative tactics. Further, she said the government could withhold information about some so-called "material witnesses" if a court had reviewed the specifics of the case and so ordered.

Even this forcefully worded ruling, therefore, doesn't carve out an absolutist stand of no secrecy. Rather, it attempts to reaffirm that openness is the norm for US justice, and judges must play a role in setting the limits.

The ruling is one in a series that have tried to temper Justice Department methods. Earlier, federal district judges in New Jersey and Michigan had ordered that immigration-court hearings for detainees be open. Soon after 9/11, the government ordered all such hearings closed. A judge in New York has ruled against the policy of holding material witnesses indefinitely. These decisions have been appealed, however.

The government's argument that terrorists might use information about the detentions to plan another attack will need to be made more forcibly than it has been up to now. Citizens should be reassured that the courts are able to balance the right to liberty against a need for security.